The New Kremlinology: Decoding The Signals Of Future EU Copyright Enforcement Moves

from the rearranging-the-chairs dept

The negotiations behind closed doors of major treaties like ACTA and TPP, and the refusal of participants to release official drafts or to engage in any kind of substantive dialog, has meant that activists and observers have been obliged to seize upon even the smallest signs and hints emerging from those talks in an attempt to guess what is going on. In a way, we are witnessing the birth of a new form of Kremlinology, which Wikipedia explains as follows:

During the Cold War, lack of reliable information about the country forced Western analysts to "read between the lines" and to use the tiniest tidbits, such as the removal of portraits, the rearranging of chairs, positions at the reviewing stand for parades in Red Square, the choice of capital or small initial letters in phrases such as "First Secretary", the arrangement of articles on the pages of the party newspaper "Pravda" and other indirect signs to try to understand what was happening in internal Soviet politics.

It's couched in an apparently interminable sequence of deadly dull clauses beginning "having regard to..." and "whereas...", before launching into a long list of mostly reasonable ideas for making more cross-border digital content available in the EU. But hidden away amongst these are some breathtaking suggestions.

Here, for instance, is Section 39:

Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;

That may sound familiar, since it's identical to one of the core ideas of SOPA: cutting off all funding to sites accused of permitting unauthorized downloads.

Here's Section 42:

Recognises that, where legal alternatives do exist, online copyright infringement remains an issue and therefore the legal online availability of copyrighted cultural material needs to be supplemented with smarter online enforcement of copyright while fully respecting fundamental rights, notably freedom of information and of speech, protection of personal data and the right to privacy, along with the 'mere conduit' principle;

This, by contrast, is straight out of ACTA, where Section 27 says:

Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

Note the same empty promise to respect various rights that is completely undermined by the other part requiring copyright enforcement that ignores them. The only real change is that "effective" has been upgraded to "smarter".

This trick of mixing contradictory demands is repeated in Section 59 of the EU report:

Calls on the Commission to consider ways to encourage network operators to standardise their technical tools and reverse the current trend of removing responsibility from these operators regarding consumer protection, implementation of intellectual property rights and ensuring Internet privacy;

So, on the one hand, network operators are supposed to protect consumers and maintain their privacy, while on the other, they will be forced to become responsible for enforcing intellectual monopolies -- losing that "mere conduit" status that was invoked in Section 42 above -- and turn in accused customers to the authorities.

All-in-all, this is an extraordinary document, in part because of its repeated call for contradictory actions, but mostly for the way it asks the European Commission to bring back some of the worst ideas in SOPA and ACTA. New Kremlinologists will obviously need to keep a close eye on missing portraits or the re-arrangement chairs in order to glean further information about the secretive plans that are being discussed deep within the bowels of the EU machine.

Reader Comments

"Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;"

This is a very dangerous definition, as it does not mention infringing material.It mentions unauthorized services, which is not the same as services carrying unauthorized materials.
How are they going to define authorized sites, by membership of the MPAA/RIAA ???

What you are describing isn't a problem of direction on copyright, but the problem of the EU to start with. It's an added level of government that few respect, with enough committees and other task force things making a lot of noise and very little progress.

It's not a copyright thing, copyright is just one of the things they are mangling.

I am not sure that 39 is as bad as you think. The laws in EU are on purpose vague to make national implementation more flexible. That it will inevitably give problematic restriction on EU companies online as long as it is only enforced in EU is, well, typical egomaniacal delusion from the commissions side. The cookie-directive is already driving people away from european companies and this is just another way of cutting down on the number of european sites on the web.

Section 42 is horrible and meaningless in every concieveable way and I am embarrased that the commission has put such a piece of junk into something they share with others. It is a statement of intend and not giving any reasonable idea about how to implement the laws that the document should facilitate.

Section 59 should have a footnote saying "bought by the publishing industry in EU, no refunds!". As a piece of law it is useless. I think it is mostly to stop the courts in EU from considering ISPs third parties and putting more pressure on them to deliver confidential information about their users. It is a disgusting way to strongarm someone without being specific about why and just another reason why no people in EU have no respect for the commission.

Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;

"That may sound familiar, since it's identical to one of the core ideas of SOPA: cutting off all funding to sites accused of permitting unauthorized downloads."

Yeah, it sounds very familiar- in fact it sounds identical to the provisions of the Wyden/Issa OPEN Act. Funny, that proposal was but one of many under SOPA but was the complete focus of the bill introduced by Wyden and Issa. So why do you compare it to SOPA and not OPEN? Unless of course to do so would not allow you to oppose any copyright enforcement at all; including that proposed by your heroes Wyden and Issa.

Re:

"Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;"
Is it me, or is this constructed to allow some form of stamp of approval process for sites offering audio/visual content if any money changes hands. Note it uses unauthorised service, not unauthorised content, which raises serious questions about what constitutes an authorised service.